Open Source Click-Wrap Notice

[Mahesh T Pai]

Lawrence E. Rosen wrote:

> I don't think that's true.  According to the judge in Specht v. Netscape,
> "the few courts that have had occasion to consider click-wrap contracts have
> held them to be valid and enforceable.

True. When click on one license, you assent to terms of that license. It
is doubtful if the courts will accept the argument that you knew of
other licenses also.

> In Specht the defendants argued that they had not read the actual license and
> were therefore not bound by it.  The judge wrote "This argument misses the
> point.  The question before me is whether the parties have first bound
> themselves to the contract.  If they have unequivocally agreed to be bound,
> the contract is enforceable whether or not they have read its terms."

He Also said:-
"More specifically, I must consider whether the web site gave Plaintiffs
sufficient notice of the existence and terms of the License Agreement,
and whether the act of downloading the software sufficiently manifested
Plaintiffs' assent to be bound by the License Agreement."
(at page 10)

Further, at page 16,
' California courts carefully limit the circumstances under which a
party may be bound to a contract. "[A]n offeree, regardless of apparent
manifestation of his consent, is not bound by inconspicuous contractual
provisions of which he was unaware, contained in a document whose contractual
nature is not obvious. . . . This principle of knowing consent applies with
particular force to provisions for arbitration." ' .

I feel that the real reasoning for this decision, what lawyers call the
"ratio" is on page 18:-

"The case law on software licensing has not eroded the importance of
assent in contract formation. Mutual assent is the bedrock of any
agreement to which the law will give force. Defendants' position, if
accepted, would so expand the definition of assent as to render it
meaningless."

In Specht, it was ultimately held that since there was no click before
use, the user cannot be bound by terms of the click.

Here, we are presented with a case where one click is intended to indicate
assent to license A, B, C, D, E, .... (ad infinitum; minimum 800 as in a linux
distro). No, the click wrap notice will not hold in a court of law.

Mahesh T. Pai.




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